High court bars execution of insane. Such executions found to be cruel and unusual punishment

The United States Supreme Court, which has refused to outlaw the death penalty as unconstitutional, has now ruled that the execution of an insane person would constitute such a violation of basic rights. In a split decision issued on Thursday, the high court voted 5 to 4 that the Constitution's ban on ``cruel and unusual punishment'' prohibits states from putting the incompetent to death for capital crimes. The justices also decided on a 7-to-2 vote involving convicted Florida murderer Alvin Ford that that state must hold new hearings into his mental competency.

If found insane, the court said, Mr. Ford cannot be executed for the 1974 murder of a Fort Lauderdale policeman. But even if he is mentally incompetent, it added, he could be executed once cured.

It affirms for the first time a constitutional bar to executing the insane. Up to now, all 38 states with death-penalty laws have had policies against executing mentally incompetent people, even if they are competent at the time of the commission of their crimes.

Despite continued lobbying from civil liberties and anti-death-penalty groups, the Supreme Court continues to leave the door ajar for the imposition of capital punishment. But the justices have also taken meticulous care to provide strong procedural protections to those accused of crimes that may result in execution. Where lower courts have violated defendants' rights, the high tribunal has often vacated a capital conviction.

Just 10 years ago -- on July 2, 1976 -- after a nine-year moratorium on executions, the Supreme Court issued four related rulings that provided the framework for reinstating the death penalty. Until that time, points out Franklin E. Zimring, a professor of law at the University of California at Berkeley, ``no industrial democracy had reintroduced the death penalty after taking substantial steps toward its abolition.''

Many opposed to capital punishment predicted a ``blood bath'' of executions when the court, in effect, lifted the ban. Just 12 states, however, have executed people since 1976. And although the number of prisoners on death row has now grown to about 1,700, no more than 21 have been executed in a single year.

Writing for the court's majority in the Ford case, Associate Justice Thurgood Marshall hailed the decision as landmark. ``For centuries, no jurisdiction has countenanced the execution of the insane,'' he pointed out. ``Yet this court has never decided [until now] whether the Constitution forbids this practice.''

Justice Marshall added that the Eighth Amendment ban on cruel and unusual punishment insulates the insane from execution ``whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance.''

In dissent, Associate Justices Sandra Day O'Connor and Byron White said the Constitution does not bar states from executing the insane. But this judicial duo objected to Florida's procedure to determine competence. Chief Justice Warren E. Burger and Associate Justice William Rehnquist voted to allow Florida to execute Ford now.

Recently, Mr. Burger, who announced he will retire from the Supreme Court at the conclusion of its present term in July, told a group of students that although he frequently voted for the death penalty, he was personally troubled when he made such a decision.

Associate Justice Harry A. Blackmun said that the ``excruciating agony of last-minute death-penalty decisions has ``haunted and debilitated the court'' during its recent deliberations.